Citation Nr: 0813839 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 99-11 615A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a heart disorder, to include hypertension. 2. Entitlement to a initial evaluation in excess of 10 percent for residuals of a hernia. 3. Entitlement to an effective date earlier than January 12, 1999 for the grant of service connection for residuals of a hernia. 4. Entitlement to special monthly pension based on the need for aid and attendance or on being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from March 1971 to May 1972. By an Administrative Decision issued in December 1997, the RO determined that the veteran's character of discharge for his period of active service was under honorable conditions and, as such, did not constitute a statutory bar to Department of Veterans Affairs (VA) benefits. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the VA Newark, New Jersey, Regional Office (RO). In a December 1998 rating decision, the RO denied entitlement to service connection for a low back disorder, hypertension with cardiomegaly, left shoulder pain, a remote right ankle sprain, a fracture of the fifth digit of the right hand, muscle contracture headaches, and a contusion of the left lower leg. In a May 1999 rating decision, the RO granted service connection for residuals of a hernia and rated this disability as noncompensably (zero percent) disabling. In a subsequent rating decision from September 2000, the RO increased the disability evaluation for the veteran's hernia residuals to 10 percent. In a January 2002 rating decision, the RO denied entitlement to service connection for post- traumatic stress disorder (PTSD), residuals of a right hand injury, stress incontinence secondary to service-connected hernia residuals, and entitlement to special monthly pension based upon being housebound. In March 2003, the Board denied service connection for service connection for a low back disorder; a heart disorder, to include hypertension; a left shoulder disorder; residuals of a right ankle sprain; residuals of a right fifth finger injury; headaches; a left leg disorder; PTSD; residuals of a right hand injury; and stress incontinence as secondary to a service-connected hernia. The Board also denied entitlement to special monthly pension based on being housebound and entitlement to an initial rating in excess of 10 percent for residuals of a hernia. The veteran appealed this decision to the United States Court of Veterans Appeals (Court). In September 2005, the Court affirmed the denials of service connection for low back disorder, a left shoulder disorder, residuals of a right ankle sprain, residuals of a right fifth finger injury, headaches, a left leg disorder, PTSD, residuals of a right hand injury, and stress incontinence as secondary to a service-connected hernia. The Court vacated the denials of service connection for a heart disorder, to include hypertension; entitlement to special monthly pension based on being housebound; and entitlement to an initial rating in excess of 10 percent for residuals of a hernia. The Court also determined that the issue of entitlement to an effective date earlier than January 12, 1999 for the grant of service connection for residuals of a hernia was in appellate status and must be addressed by the Board. The Court remanded those issues for further proceedings consistent with the Order. The Board in turn remanded these claims for additional development in May 2006. The May 2006 remand also included the issue of entitlement to service connection for chronic neck pain due to strain (claimed as a neck condition, cervical spine) insofar as issuance of a Statement of the Case pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) was required. An RO hearing on this issue was also requested. The veteran appeared for an RO hearing regarding this issue in October 2007, but later in the same month he withdrew this claim from appellate status in a lay statement. The Board is, however, aware that in a February 2008 Brief, the veteran's representative argued that the RO had "failed to adjudicate Appellant's claim of entitlement to service connection for a neck disability," notwithstanding the aforementioned action and withdrawal of the prior claim. It appears that the representative may be raising a claim to reopen the previously denied claim, and the Board accordingly refers this matter back to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The Board has reviewed the veteran's claims file and is aware of the lengthy pendency of this appeal and the extensive procedural history described above. That notwithstanding, in terms of both noncompliance with the May 2006 remand and additional evidentiary development necessitated in view of a May 2007 statement from the veteran, the Board finds that additional development and adjudication on remand are necessary. Indeed, in the February 2008 Brief, the veteran's representative stressed the need for an additional remand based on inadequate development and adjudication. One specific deficiency noted by the representative in the February 2008 brief was the absence of a hearing. In the May 2006 remand, the Board requested that the veteran be afforded a VA Travel Board hearing before a Veterans Law Judge at the RO, though only concerning the claims for a higher initial evaluation for residuals of a hernia and for service connection for a heart disorder, including hypertension. While the veteran was afforded an RO hearing on the now- withdrawn issue of entitlement to service connection for a neck disorder, he was never provided an opportunity to appear at a Travel Board hearing. Notably, there is no indication from the record that he has withdrawn this request. Further efforts therefore need to be made to ensure that the veteran has the opportunity to appear for this hearing on the aforementioned issues. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (citing 38 C.F.R. § 3.103(a) (2007) (a claimant's procedural due process and appellate rights include the right to a hearing)). Regarding all issues on appeal, the Board, in the May 2006 remand, requested both the issuance of a comprehensive letter addressing the issues on appeal in light of the Veterans Claims Assistance Act of 2000 (VCAA) and the readjudication of all issues in a Supplemental Statement of the Case, with an opportunity for response. While a VCAA letter meeting the specifics of the Board's remand was issued in May 2007, the veteran's claims were never readjudicated in a Supplemental Statement of the Case. Significantly, this inaction appears to have been referenced in a December 2007 Report of Contact, in which it was noted that the veteran "never received" a decision letter on his remand. The Board finds such readjudication necessary because, since the issuance of the March 2003 Board decision, the RO has received copious additional medical evidence, including VA treatment records dated from November 1998 to August 2004 and VA examination reports from June and September of 2004. (The Board does note that a separate appeal was perfected as to a new claim for an increased rating for the hernia disability, and the newly received evidence was addressed in a December 2004 Statement of the Case and an April 2005 Supplemental Statement of the Case corresponding to that appeal.) The necessity for a Supplemental Statement of the Case addressing this new evidence remains, pursuant to 38 C.F.R. §§ 19.9 and 19.31 (2007). See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders). Also included in the evidence added to the claims file since the March 2003 Board decision is a May 2007 lay statement from the veteran, the contents of which reflect the need for additional evidentiary development. First, the veteran described a course of ongoing treatment for his hypertension and heart disorder and for his hernia repair, with the assertion that during instances of worsening hernia symptoms, his blood pressure "goes up higher and higher until it effect [sic] my breathing." He noted that his medical records were held at the VA Medical Center (VAMC) in East Orange, New Jersey. The claims file as presently constituted contains medical records from this facility dated only through August 2004; accordingly, VA is required to obtain records of this most recent treatment under 38 C.F.R. § 3.159(c)(2) (2007). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In the same statement, the veteran noted that "[t]he residuals of umbilicus hernia . . . has increased in severity." The veteran was last examined for this disability in June 2004, nearly four years ago. Given the reported increase in severity, a re-examination is warranted in conjunction with the increased evaluation claim. See VAOPGCPREC 11-95 (April 7, 1995) (the length of time since the last examination, in and of itself, does not warrant a further examination unless a worsening of the disability since the last examination is asserted). For all of the above reasons, the case is REMANDED for the following action: 1. All records of medical treatment from the East Orange VAMC dated since August 2004 should be requested. All records obtained pursuant to this request must be included in the veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 2. Then, the veteran should be afforded a VA examination, with an appropriate examiner, to determine the symptoms and severity of his service-connected residuals of a hernia. The veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Specific findings should include the size of the hernia, the extent to which it is reducible, and the need for any assistive devices (i.e., a truss or belt). The examiner should also comment upon the degree to which this disorder affects the veteran's occupational functioning. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. After completion of the above development, the veteran's claims of entitlement to service connection for a heart disorder, to include hypertension (and to include as secondary to his service-connected residuals of a hernia, in view of his assertions from his May 2007 statement); entitlement to a initial evaluation in excess of 10 percent for residuals of a hernia; entitlement to an effective date earlier than January 12, 1999 for the grant of service connection for residuals of a hernia; and entitlement to special monthly pension based on the need for aid and attendance or on being housebound should be readjudicated. If the determination of one or more of these claims remains less than fully favorable to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. 4. Once all above development is accomplished, the veteran should be scheduled for a Travel Board hearing before a Veterans Law Judge at the RO regarding the claims for a higher initial rating for residuals of a hernia and for service connection for a heart disorder, including hypertension. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).